Hills v. HHS CV-94-214-SD 04/06/95 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Michael Hills
v. Civil No. 94-214-SD
Secretary of Health and Human Services
O R D E R
Presently before the court is a review, pursuant to section
20 5 (g) of the Social Security Act (Act), codified as amended at
42 U.S.C. § 405(g), of the final decision reached by the
Secretary of Health and Human Services (Secretary) .
Claimant Michael Hills filed an application for disability
insurance benefits (DIB) on January 5, 1993. Hills also filed an
application for supplemental security income (SSI) benefits on
December 31, 1992, which the agency assigned a protective filing
date of January 1, 1993. Both applications are predicated upon
the allegedly disabling low back condition which Hills claims
forced him to cease working as of December 4, 1992. Claimant's
applications were denied initially and after reconsideration by
the Social Security Administration.
Upon claimant's reguest, a hearing was held before an Administrative Law Judge (ALJ) on September 30, 1993. The ALJ
conducted a de novo hearing and received testimony from the
claimant, claimant's wife, claimant's attorney, and an impartial
vocational expert. On December 16, 1993, the ALJ issued his
written findings, indicating that claimant was not under any
disability during the time in guestion. Thereafter, claimant
filed a reguest for review by the Appeals Council, which was
denied on April 2, 1994, thus rendering the December 16, 1993,
decision of the ALJ the final decision of the Secretary. Hills
subseguently filed this motion to review the Secretary's
decision.
Background
1. Education and Work History
Michael Hills was born on May 15, 1962, and currently
resides in Derry, New Hampshire. Transcript (Tr.) 41-42. At the
time of the hearing before the ALJ, Hills was 31 years old. Tr.
42. In addition to completing high school, claimant subseguently
obtained a certificate from the Andover Tractor Trailer School in
September 1980. Id.
At the time of the onset of his alleged disability, claimant
was employed by the Sea Coast Learning Center as a bus driver for
handicapped students. Tr. 42, 108, 132. Previous work
2 experience includes positions as a gas station/convenience store
cashier, Tr. 42, 65-66, 108; an assistant manager of a
restaurant, Tr. 42, 58-59, 108; a receiving department clerk for
a window manufacturing plant, Tr. 64-65, 108; and a meat packer
for a supermarket, Tr. 66, 108.
Claimant Hills has not been employed or sought employment
since December 1992, Tr. 42, but rather spends his time at home
reading, watching television, and doing needlework, Tr. 55, 119.
He performs household chores with his wife, including washing the
dishes and vacuuming the living room, and takes part in shopping
for groceries. Tr. 60.
2. Medical History
a. Treating/Examining Physicians
Beginning about November 1992, Hills sought a course of
treatment for alleged lower back pain. Tr. 44, 161. After
seeing his family physician. Dr. Joseph Cataldo, and a physical
therapist. Hills was referred to Dr. William Price, an
orthopaedic surgeon. Tr. 44. Dr. Price's medical notes indicate
that claimant's back condition first became apparent within the
six months prior to November 1992 and that the pain associated
with said condition "is increased with sitting [and] . . .
[d]ecreased with standing [and] . . . with lying." Tr. 161. Dr.
3 Price also noted that claimant "has a normal heel and toe gait
although slightly antalgic."1 Id. In light of his findings. Dr.
Price ordered a Magnetic Resonance Imaging (MRI) scan of
claimant's back and spine. Tr. 44, 161.2
An MRI was conducted on December 1, 1992, and revealed a
"small, right [herniated nucleus pulposus] of the L5-S1
intervertebral disc" as well as " [d]iffuse posterior bulging of
the L3-4 and L4-5 intervertebral discs." Tr. 153. Claimant
returned to Dr. Price on December 4, 1992, the alleged onset of
disability, complaining of "[s]evere back pain and bilateral leg
pain . . . with numbness into the feet." Tr. 162. Hills stated
to Dr. Price that he "cannot deal with his pain any more" but
deferred making a decision regarding surgery pending the outcome
of chiropractic care. Id.
On December 17, 1992, Hills was examined by Michael Guidi,
an osteopathic physician in Massachusetts, who noted that
claimant "gets sciatic pain on a daily basis . . . [which] runs
down both legs to the knees and then with a cramping sensationin
the lower legs." Tr. 164. Dr. Guidi recommended that claimant
1"Antalgic" is defined as "counteracting or avoiding pain, as a posture or gait assumed so as to lessen pain." D o r l a n d 's I l l u s t r a t e d M e d i c a l D i c t i o n a r y 90 (28th ed. 1994) .
2At this point, claimant inguired whether he could return to work, to which Dr. Price opined, "I thinkhe can, however it may give him some additional pain." Tr. 161.
4 get "bed rest as much as possible" and that he seek further care
from the New England Baptist Hospital. Id.
Dr. Cataldo corroborated the MRI diagnosis at a December 23,
1992, appointment, indicating that claimant suffered from a
"small" herniated nucleus pulposus L5-S1 and asserted that said
condition could be controlled or improved with "physical therapy
and possible surgery." Tr. 154. Although limited by "no ability
for long periods of standing," Dr. Cataldo felt that, at most, a
"Back program or Surgery would allow up to 6 mo[nths]
disability." Id. In light of these limitations. Dr. Cataldo
recommended vocational rehabilitation. Id.
Claimant returned to Dr. Price on January 6, 1993. Although
he felt Dr. Guidi "did not actually do that much for him,"
claimant expressed an interest in seeing a second osteopath. Tr.
162. Since Hills wanted to "continue conservative care," Dr.
Price recommended he begin to see Dr. David Lewis at the Spine
Center in Manchester, New Hampshire. Id.3
On January 8, 1993, claimant's wife Wendy telephoned Dr.
Guidi and indicated that claimant continued to have pain and
numbness in his feet upon ambulation, but that such numbness
3Despite its thorough review of the administrative record, the court notes that none of the medical notes contained therein are attributed to said Dr. Lewis, and thus it is unclear whether claimant ever sought treatment from same.
5 decreased with bed rest. Tr. 164. When asked by Wendy Hills
to provide an "out of work note" for her husband. Dr. Guidi
deferred, recommending that claimant speak with Dr. Cataldo about
such a note. Id.
Although claimant was referred to a Dr. Lewis, it appears
from the record that he received further osteopathic treatment
from a Dr. William Kirmes instead. Tr. 184. Specifically, Hills
visited Dr. Kirmes at his office on January 15 and 25, 1993, and
February 9, 1993. Tr. 182-84. As of the February 9 office
visit. Dr. Kirmes noted that Hills was "getting gradually
better." Tr. 184.4
Claimant sought further chiropractic care from Londonderry
Chiropractic between March and August 1993. Tr. 186-89. During
the March 17, 1993, visit, claimant indicated that he had
difficulty "sitting, sleeping, [and] standing" as well as lower
back and leg pain. Tr. 188. At his June 16, 1993, visit,
claimant stated that his lower back was "very sore" and that he
had "difficulty getting up." Id. The final entry in Londonderry
Chiropractic's records are for an August 9, 1993, visit wherein
Claimant's attorney wrote to Dr. Kirmes in September 1993 and reguested a "Medical Assessment of Ability to Do Work Related Activities." Dr. Kirmes did "not feel comfortable" filling out such a form given the fact that "such a long period of time has passed since [Hills] was last here." Tr. 184. Kirmes further indicated that given his impression of claimant's condition at the February 9, 1993, office visit, he "assumed, having not seen [Hills] for follow up again, that he was doing all right." Id.
6 claimant again complained of lower back pain. Id.
During September and October of 1993, claimant received
additional osteopathic treatment from Dr. David I. Steinberg.
Tr. 47-48.5 Dr. Steinberg first examined claimant on
September 9, 1993, and noted the following:
[Hills] is alert and in no acute distress. He does exhibit a moderate amount of pain behavior. His gait on a flat surface is normal. He is able to toe and heel walk but does complain of increased pain across the low back. Examination of the LS spine reveals moderate tenderness on very light palpation in the entire bilateral lumbosacral paravertebrals without spasm or trigger points . . . . Motor exam reveals normal symmetric bulk and tone without evidence of focal motor weakness.
September 9, 1993, treatment notes of Dr. David I. Steinberg at 2
(attached as Attachment A to Claimant's Motion to Reverse and
Remand). During the course of this examination. Hills indicated
that " [h]is weekly routine includes walking one day a week and
riding a bicycle 1 day a week." Id. Hills further indicated
that a "typical day involves sitting for 4 hours." Id. In
addition. Hills informed Dr. Steinberg that "[h]e is independent
5The court notes that the administrative record does not contain the treatment notes of Dr. Steinberg. However, claimant indicates that these materials were sent to the Appeals Council, Motion to Reverse and Remand at 4, and has provided copies of said notes as Attachment A to his Motion to Reverse and Remand. The court assumes, therefore, that their absence from the complete administrative record is due to inadvertence or oversight and will consider such notes in its review.
7 in all his [activities of daily living] and self care." Id.6
Dr. Steinberg concluded from the examination that claimant
suffers from " [m]echanical low back pain superimposed on probable
[Degenerative Disc Disease] and compounded by exogenous
obesity,"7 id., and thus prescribed outpatient physical therapy,
id.
At an October 4, 1993, visit. Hills indicated that he "had
been participating in an active [physical therapy] program . . .
[but] noted minimal improvement in his symptoms." Steinberg
Notes at 4. The physical therapy sessions left claimant "sore
for several days" thereafter and "then his symptoms return to
6The court pauses here to note that claimant's testimony before the ALJ, only three weeks after this initial examination by Dr. Steinberg, completely contradicts this prior admission:
Q Is there anything else Mr. Hills that you feel is important before we turn to other testimony that we haven't asked you about your condition? A No, not really. I just wanted just to make it clear that, you know, I do have a lot of problems with like personal things like going to the bathroom and wiping yourself afterwards. I have a hard time doing that.
Tr . 5 9.
7Hills is approximately 5'9" tall and has regularly weighed between 245 and 270 pounds. Tr. 54. All of claimant's treating/ examining physicians have suggested a weight reduction plan as part of his overall therapy, id., and the nontreating/nonexamining physicians have identified obesity as a secondary diagnosis to claimant's degenerative disc disease, Tr. 76, 84, 137. base line." Id. Although Hills continued to complain of "pain
across the low back with intermittent radiation into the
bilateral buttocks regions," he was not taking any medication at
that time. Id. Further, although Hills appeared alert, in no
acute distress, and walked with a normal gait, he did so "with
the trunk forward flexed 45°" and indicated that he could not
straighten up. Id.
Hills saw Dr. Steinberg for the last time on October 18,
1993. As of that date. Hills had completed formal outpatient
physical therapy "after achieving all his goals." Steinberg
Notes at 5. Hills had been instructed regarding an independent
exercise program and indicated to Dr. Steinberg that he
"continues with this program on a daily basis." Id.8 Although
Hills continued to "complain of pain across the low back with
intermittent radiation into the bilateral buttocks regions," he
undertook "walks 3-4 days per week for 10 minutes" and was
observed by Dr. Steinberg as "alert and in no acute distress."
Id. Further, he was "ambulatory in a neutral position today,"
id., and was not walking "with the trunk forward flexed as he had
been previously observed to do," id. Dr. Steinberg thus
terminated his formal treatment of claimant, opting instead to
8Hills further related that he was "waiting for social security to go through" and thus remained unemployed without any present vocational goals. Steinberg Notes at 5. see him as circumstances may require and noting that he "asked
Mr. Hills to continue to increase his aerobic conditioning and to
consider swimming at the Y or other facility and to continue on
weight reduction." Id.
b. Nonexamininq/Nontreatinq Physicians
Dr. Burton A. Nault, a Disability Determination Services
medical consultant, examined claimant's medical records on
January 29, 1993, and estimated that claimant had the residual
functional capacity to lift and carry up to twenty (20) pounds
occasionally and up to ten (10) pounds frequently; to stand, sit,
or walk for up to six hours in an eight-hour day; and to push or
pull without limitation. Tr. 79. Although claimant was under no
manipulative, visual, communicative, or environmental
limitations. Dr. Nault did conclude that claimant experienced
occasional postural limitations regarding climbing, stooping,
kneeling, crouching, and crawling. Tr. 80. Based on the
foregoing. Dr. Nault found that
the claimant is considered to be totally disabled while undergoing physiotherapy for an acute low back process, now chronic. Improvement is anticipated and ongoing at the present time. A Listings level impairment is not supported. It is reasonable to assume that the claimant will return to at least a light work activity within 12 months of his AOD [alleged onset date].
10 Tr. 84.
Discussion
1. Standard of Review
This court is empowered, pursuant to 42 U.S.C. § 405(g), to
"enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Secretary, with or without remanding the cause for a rehearing."
42 U.S.C. § 405(g) (Supp. 1994).
When reviewing a Social Security disability determination,
the factual findings of the Secretary "shall be conclusive if
supported by 'substantial evidence.'" Irlanda Ortiz v.
Secretary, 955 F.2d 765, 769 (1st Cir. 1991) (guoting 42 U.S.C. §
405(g)). The Supreme Court has instructed that the term
"substantial evidence" means "'more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as
adeguate to support a conclusion.'" Richardson v. Perales, 402
U.S. 389, 401 (1971) (guoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)); Rodriquez v. Secretary, 647 F.2d 218,
222 (1st Cir. 1981).
However, substantial evidence "is something less than the
weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an
11 administrative agency's finding from being supported by
substantial evidence." Consolo v. Federal Maritime Comm'n, 383
U.S. 607, 620 (1966) (citing NLRB v. Nevada Consolidated Copper
Corp., 316 U.S. 105, 106 (1942)). Moreover, the decision of the
Secretary must be affirmed, "even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence." Rodriguez Pagan v. Secretary, 819 F.2d 1,
3 (1st Cir. 1987), cert, denied, 484 U.S. 1012 (1988) (citing
Lizotte v. Secretary, 654 F.2d 127, 128 (1st Cir. 1981)).
It is incumbent on the Secretary "to determine issues of
credibility and to draw inferences from the record evidence."
Irlanda Ortiz, supra, 955 F.2d at 769 (citing Rodriguez, supra,
647 F.2d at 222). Moreover, "the resolution of conflicts in the
evidence is for the Secretary, not the courts." Id.; Evangelista
v. Secretary, 826 F.2d 136, 141 (1st Cir. 1987); see also Sitar
v. Schweiker, 671 F.2d 19, 22 (1st Cir. 1982); Burgos Lopez v.
Secretary, 747 F.2d 37, 40 (1st Cir. 1984).
Since determinations regarding factual issues and the
credibility of witnesses are entrusted to the Secretary, whose
findings should be accorded great deference, see, e.g.,
Frustaglia v. Secretary, 829 F.2d 192, 195 (1st Cir. 1987), the
court "'must uphold the Secretary's findings . . . if a
reasonable mind, reviewing the evidence in the record as a whole.
12 could accept it as adequate to support his conclusion.'" Irlanda
Ortiz, supra, 955 F.2d at 769 (quoting Rodriguez, supra, 647 F.2d
at 222).
2. The ALJ's Findings
In his written report dated December 16, 1993, the ALJ made
the following findings:
2. The claimant has not engaged in substantial activity since December 4, 1992. 3. The medical evidence establishes that the claimant has severe small L5-S1 herniated nucleus pulposus at L3-4 and L4-5 intervertebral discs, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4. 4. The claimant's hearing testimony was not entirely credible with respect to his allegations of pain because as evaluated under the criteria of Social Security Ruling 88-13 and the Avery court order, the allegations supported a determination that the claimant had sufficient residual functional capacity for work activity in the light range. 5. The claimant has the residual functional capacity to perform the physical exertion and nonexertional requirements of work except for the exertional requirements of very heavy, heavy, medium, and the full range of light work and the nonexertional limitations of no bending or performing postural activities and no sitting, standing or walking for more than 30 minutes (20 CFR 404 .1545 and 416.945) . 6. The claimant is unable to perform his past relevant work as a bus driver for the handicapped.
13 7. The claimant's residual functional capacity for the full range of light work is reduced by no bending or performing postural activities and no sitting, standing or walking for more than 30 minutes.
Tr. 17-18.
In light of the above, the ALJ concluded that "[s]ince there
are a significant number of light jobs existing in the national
economy that the claimant could perform, the undesigned therefore
finds the claimant not disabled within the meaning of the Social
Security Act." Tr. 16. Claimant raises two issues with respect
to the ALJ's determination; namely, (1) that the ALJ
impermissibly inferred a light work residual functional capacity
(RFC) from the medical evidence and (2) the testimony of the
vocational expert (VE) does not support a Step 59 denial.
a. The Light Work RFC
Based on "the clinical findings and functional assessments
of the claimant's treating physicians," the ALJ concluded that
"the claimant can do light work." Tr. 15.10 Claimant contends
9For an overview of the five-step seguential evaluation process employed in determining disability status, see infra note 14 .
10The regulations define light work as follows:
Light work involves lifting no more than 20 pounds at a time with freguent lifting or carrying of objects weighing up to 10 pounds.
14 that " [a] review of the medical records . . . provided show that
none of the various treating physicians felt [I] could return to
work," Plaintiff's Motion to Reverse and Remand at 10, and
further, "this failure [by the ALJ] to identify what medical
records and what residual functional capacity assessment
supported his finding deprives his decision of substantial
evidence," id. at 10-11.
Although the "ALJ is not gualified to interpret raw medical
data in functional terms," Perez v. Secretary, 958 F.2d 445, 446
(1st Cir. 1991) (per curiam) (citations omitted), "[t]his
principle does not mean . . . that the Secretary is precluded
from rendering common-sense judgments about functional capacity
based on medical findings . . . ." Gordils v. Secretary, 921
F.2d 327, 329 (1st Cir. 1990). Such "common-sense judgments
Even though the weight lifted may be very little, a job is in this category when it reguires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.
20 C.F.R. § 404.1567(b) (1994).
15 about functional capacity" are permissible "as long as the
Secretary does not overstep the bounds of a lay person's
competence and render a medical judgment." Id. at 32 9.
In ascribing a "light work" RFC to the claimant, the ALJ did
not merely rely on his own "common-sense" judgment of the medical
evidence, but also considered the RFC assessment completed by Dr.
Nault, as well as other evidence in the record.11 Although
"written reports submitted by non-testifying, non-examining
physicians cannot alone constitute substantial evidence," Rose v.
Shalala, 34 F.3d 13, 18 (1st Cir. 1994), the First Circuit has
noted that "this is not an ironclad rule," id. (citing Berrios
Lopez v. Secretary, 951 F.2d 427, 431 (1st Cir. 1991) (per
curiam); Gordils, supra, 921 F.2d at 328). Furthermore, "the
amount of weight that can properly be given the conclusions of
non-testifying, non-examining physicians '"will vary with the
circumstances, including the nature of the illness and the
information provided the expert."'" Rose, supra, 34 F.3d at 18
(guoting Berrios Lopez, supra, 951 F.3d at 431 (guoting Rodriguez
v. Secretary, 647 F.2d 218, 223 (1st Cir. 1981))).
Supplementing the Nault RFC is the medical opinion of Dr.
11Indeed, claimant's ability to meet the lifting reguirements of the light work classification is perhaps best evidenced by the claimant's indication that his contribution to overall household maintenance is satisfied, at least in part, by removing small bags of trash. Tr. 107.
16 Cataldo, claimant's own physician, who reported on January 4,
1993, after examining Hills on December 23, 1992, that the only
limitation affecting claimant was a prohibition against long
periods of standing. Tr. 154. The March 7, 1994, statement of
Dr. Albert C. Northcutt12 that "at this point in time Mr. Hills
is not capable of performing any activity that he is trained
for," Tr. 204, is of no moment.
As an initial matter, such conclusory statements regarding
disability are insufficient to undercut the evidentiary
significance of the findings of nontestifying, nonexamining
physicians. See Tremblay v. Secretary, 676 F.2d 11, 13 (1st Cir.
1982) (per curiam) (affirming the Secretary's adoption of the
findings of a nontestifying, nonexamining physician, and
permitting those findings by themselves to constitute substantial
evidence, in the face of treating physician's conclusory
statement of disability).
Secondarily, yet of egual relevance, the finding of a light
work RFC and the opinions of the examining physicians are in no
way inconsistent. Dr. Cataldo indicated that claimant should be
referred to vocational rehabilitation. Tr. 154. Likewise, Dr.
Northcutt merely opined that claimant remains unable to perform
12Dr. Northcutt practices at the Derry Medical Center and seems to have taken the place of Dr. Cataldo as claimant's family physician.
17 "any activity that he is trained for." Tr. 204. What both
opinions implicitly recognize is that, rather than being
completely disabled as that term is defined under the Act,
claimant remains capable of performing work that exists in the
national economy, but entry into such fields reguires some degree
of vocational retraining.
In conseguence thereof, the court hereby finds the ALJ's
determination of a light work RFC to be supported by substantial
evidence, and thus said determination is accordingly affirmed.13
b. Step 5 Denial
Disability is defined under the Act as the "inability to
engage in any substantial gainful activity by reason of any
13Furthermore, the court notes that it is not necessary to find substantial evidence to support a finding that claimant could perform light work in order to affirm the ALJ's ultimate determination of "not disabled." Claimant was found not disabled based on both Rule 202.21 and Rule 202.22 of the light work grid, which encompasses subsidiary findings that claimant was below forty-nine years old, had a high school education or more, had done skilled or semi-skilled work that either was transferable or not, and could perform light work. Claimant only takes issue with the last finding. However, if the court substituted a capacity to perform sedentary work for light work, the result under the grid remains unchanged. See Rules 201.28 and 201.29 (indicating a finding of "not disabled" under the sedentary work grid). Thus, the court's conclusion "that there is substantial evidence to support a finding that claimant's exertional impairment[s] [do] not preclude performance of the full range of sedentary work is adeguate to sustain the Secretary's determination under the grid." Gordils, supra, 921 F.2d at 329- 30 .
18 medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months . . . 42 U.S.C. § 423(d)(1)(A); see also Bowen v.
Yuckert, 482 U.S. 137, 140 (1987). Further, the Act provides
that an individual
shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d) (2) (A) .
In view of this legislative mandate, the Secretary has
established a five-step seguential evaluation process which first
considers the disability claimant's medical impairment and then
whether that impairment precludes him from engaging in
"substantial gainful activity." See 20 C.F.R. § 404.1520(b)- (f)
(1994); see also Yuckert, supra, 482 U.S. at 140-42; Goodermote
v. Secretary, 690 F.2d 5, 6 (1st Cir. 1982),14 If the claimant
14This five-step analysis considers the following:
(1) is claimant engaged in substantial gainful activity?; if so, a not disabled determination automatically ensues;
19 has established the threshold disability requirement, the burden
then shifts to the Secretary to prove that other work is
available in the national economy which the claimant could do.
See Dudley v. Secretary, 816 F.2d 792, 793 (1st Cir. 1987) (per
curiam) (citing Goodermote, supra, 690 F.2d at 6-7). Should the
ALJ, after adhering to the sequential analysis set forth in the
regulations, reach a conclusion that is supported by substantial
evidence, such a finding is then considered conclusive. See
Goodermote, supra, 690 F.2d at 7-8; see also 42 U.S.C. § 405(g) .
At Step 5 of the sequential analysis, the ALJ concluded
that the claimant's allegations of pain are not entirely credible when measured under the criteria of Avery and Social Security Ruling 88-13 and leaves the claimant with the residual functional capacity for light work as that work is defined at 20 CFR 404.1567(b) and 20 CFR 416.967(b). The undersigned further finds that the claimant would be
(2) does claimant have a severe impairment--an impairment which significantly limits his physical or mental capacity to perform basic work-related functions?; if not, the claimant is automatically not disabled; (3) does the impairment meet or equal an impairment indicated in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1?; if so, claimant is automatically disabled; (4) does the impairment prevent claimant from performing past relevant work; if not, claimant is considered not disabled; and (5) whether the impairment prevents claimant from doing any other work that exists in the national economy?; if not, claimant is determined to be not disabled.
20 C.F.R. § 404.1520 (b)- (f); Goodermote, supra, 690 F.2d at 7.
20 required to avoid bending and performing postural activities and is limited to sitting, standing or walking for no more than 30 minutes.
Tr. 15. Applying these criteria alone to the Medical Vocational
Guidelines contained in 20 C.F.R., Appendix 2, Subpart P,
resulted in a "not disabled" finding pursuant to Rules 202.21 and
202.22 of the light work grid. However, because these rules do
not take into account the claimant's nonexertional impairments,
these rules can only be used as a framework in determining the
claimant's disability. See Rose, supra, 34 F.3d at 19; see also
Sherwin v. Secretary, 685 F.2d 1, 4 (1st Cir. 1982) ("Grid will
offer only guidance--!! will not determine 'disability'--in
borderline cases or where nonexertional, or additional,
disabilities are at issue."), cert, denied sub nom., Picard v.
Secretary, 461 U.S. 958 (1982).
Further evaluation of claimant's condition, and the
availability of other work in the national economy, was conducted
by the ALJ through his examination of the V E . In the
hypotheticals posed to the VE, the ALJ depicted a younger worker,
age thirty-one, with a high school education whose past work
experience included both skilled and semi-skilled positions. Tr.
66-67. Said individual was further constrained by the following
exertional limitations: (1) could not lift and carry more than
twenty (20) pounds at any one time; (2) unable to bend at waist
21 to pick up objects off the floor; (3) could not climb ladders,
nor stoop, kneel, crouch, or crawl; and (4) had difficulty
remaining in one position for a long period of time without the
opportunity to change position. Tr. 67.
Assuming the above, the ALJ added the further limitation
that said individual would only be able to either sit or stand
for thirty (30) minutes at any one time before needing to
alternate his position. Id. The VE testified that although
there were no skilled or semi-skilled positions available to an
individual so limited, three unskilled positions, listed as
follows, existed: (1) toll collector, 160 positions in southern
New Hampshire, 14,000 nationally; (2) security guard, 165
positions in southern New Hampshire, 87,000 nationally; and (3)
fast food order clerk, 240 positions in southern New Hampshire,
84, 000 nationally. Tr. 68-69.15
Changing the hypothetical, the ALJ then posited an
individual who, in addition to the limitations hereinabove set
forth, was further limited by the need to "lie down or change
their position so that they could recline as well as being able
to get up and down . . . ." Tr. 69. This period of reclining
15The court notes that with respect to the occupations identified by the VE, the toll collector position is classified at the light exertional level, whereas both the security guard and fast food order clerk are classified at the sedentary level. T r . 68-69.
22 might last anywhere from thirty to forty-five (30-45) minutes at
a time and might unpredictably occur in either the morning or the
afternoon, or both. Id. An individual burdened with these
limitations, according to the VE, would not be able to perform
the reguirements of the three aforementioned occupations. Id.
In light of the lack of medical evidence to suggest an
objective basis for totally disabling pain, the ALJ, who observed
claimant's demeanor at the hearing, was entitled to make a
credibility determination regarding claimant's pain. Da Rosa v.
Secretary, 803 F.2d 24, 26 (1st Cir. 1986) (per curiam), and
further to conclude that his pain did not disable him from
performing sedentary to light exertional activities, Perez,
supra, 958 F.2d at 448. As noted previously, issues of fact and
witness credibility are entrusted to the Secretary, and such
findings are appropriately accorded great deference. See
Frustaglia, supra, 829 F.2d at 195.
This court is empowered to scrutinize the record and
complete an independent assessment of the evidence. See 42
U.S.C. § 405(g). Pursuant to such review, the court finds that
"'a reasonable mind . . . could accept [the ALJ's findings] as
adeguate to support his conclusion.'" Irlande Ortiz, supra, 955
F.2d at 769 (guoting Rodriguez, supra, 647 F.2d at 222). In
light of the court's further finding that the ALJ's conclusions
23 are supported by substantial evidence on the record, claimant's
motion to reverse and remand is accordingly denied.
Conclusion
For the reasons set forth herein, the court grants
defendant's motion to affirm the decision of the Secretary
(document 13) and denies the claimant's motion to reverse
(document 10).
SO ORDERED.
Shane Devine, Senior Judge United States District Court
April 6, 1995
cc: Raymond J. Kelly, Esg. David L. Broderick, Esg.